City of Sacramento v. Fowler,
88 U.S. 119 (1874)

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City of Sacramento v. Fowler, 88 U.S. 21 Wall. 119 119 (1874)

City of Sacramento v. Fowler

88 U.S. (21 Wall.) 119


1. Under the Process Act of California, enacting that in a suit against a corporation, the summons may be served on "the president or other head of the corporation," service is properly made on the president of a board of trustees, by whom it is declared in the city charter that the city shall be "governed," and which president of the board of trustees, the charter further declares, shall be "general executive officer of the city government, head of the police, and general executive head of the city."

Page 88 U. S. 120

2. When no defense has been made to the liability of a city for its bonds in a state court having general common law jurisdiction in the place where the city was sued on them, no question can be raised here, on error to a judgment obtained in a circuit court of the United States, on the record of the judgment of such state court.

The City of Sacramento, having been incorporated March 26, 1851, [Footnote 1] was reincorporated by act of April 25, 1863. [Footnote 2]

The act enacts as follows:

"§ 2. The City of Sacramento shall be governed by a board of trustees consisting of three members."

"§ 3. The officers of the City of Sacramento shall be a first, second, and third trustee, who shall constitute a board of trustees."

"§ 4. The board of trustees shall be designated as follows: the first trustee shall be president of the board of trustees and general executive officer of the city government."

"§ 5. The president of the board of trustees shall be the head of the police and general executive head of the city."

No mayor is mentioned in the charter.

This statute being in force, Mrs. Fowle, owning certain unpaid bonds of the city issued in October, 1852, under the former incorporation, brought suit in 1866 against the city in the District Court of the Twelfth Judicial District of the State of California, a court of general common law jurisdiction, to obtain judgment on them.

The California Process Act [Footnote 3] (also in force when suit was brought) enacts that if a suit be against a corporation, the summons shall be served by delivering a copy thereof "to the president, or other head of the corporation, secretary, cashier, or managing agent thereof."

The officer to whom the writ was directed returned it with a certificate that he had served it on the defendant, the City of Sacramento, by delivering a copy of the summons,

Page 88 U. S. 121

with the complaint attached, to Charles Swift, president of the board of trustees of said defendant, whom he knew to be such president and head of said corporation.

No defense was made to the suit, and judgment was entered by default in favor of the plaintiff in March, 1867 for $40,000.

On this judgment Mrs. Fowle brought suit in the Circuit Court of the United States for the District of California, and a properly certified copy of the judgment roll in the former case being offered by the plaintiff in evidence, it was objected to by the defendant on the grounds:

1st. That it appeared from the said roll that the defendant had not been served with summons as required by statute, the president of the board of trustees not being the president of the city corporation.

2d. That by the terms of the original charter of Sacramento, in force when the bonds sued on were issued, the charter was liable to be altered from time to time or repealed, and because, in 1863, it had been altered in such a way as that while it was enacted that the city might be sued by its name on any bond, it was provided that this should be only when such bond had been made after April 25, 1863, which was not the case here.

The court below admitted the evidence, and judgment was given for the plaintiff. The city now brought the case here on exception to the evidence.

Page 88 U. S. 122

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